In tabling the Committee’s Alert Digest No. 5 of 2009 and Fourth Report of 2009, I would like to reiterate some important points in relation to explanatory memoranda which have been expressed by the Committee several times in the past.

In Alert Digest No. 5 of 2009, the Committee has raised a number of concerns, and has sought responses from the relevant Ministers, in relation to almost half of the bills which were the subject of consideration. These concerns relate to, for example: retrospective commencement and application of provisions; use of ‘Henry VIII’ clauses to enable delegated legislation to override earlier Acts; wide delegation of powers; potential non-availability of review rights; and insufficient parliamentary scrutiny.

The Committee has been impressed with the quality of recent Ministerial responses and the timely fashion in which they have been provided to the Committee. Such responses have contained extremely comprehensive explanations and clarification of particular matters considered problematic by the Committee. In almost every case in the past year or so, the Committee has been satisfied that the responses adequately address its concerns. The Committee has also been pleased to note recent undertakings by some Ministers to move amendments or make changes to explanatory memoranda on the basis of the Committee’s concerns or suggestions.

Indeed, in a response to the Committee’s comments on the Transport Safety Investigation Amendment Bill 2009, contained in the Fourth Report of 2009, the Minister for Infrastructure, Transport, Regional Development and Local Government has undertaken to ensure that regulations will be made to prescribe a requirement to report on the use of special investigators in transport safety matters investigated by the Australian Transport Safety Bureau during each financial year. The Committee had expressed concern in Alert Digest No. 3 of 2009 at the lack of a requirement to report to Parliament on the use of special investigators.

While the Committee welcomes such outcomes, it nevertheless remains concerned that it has to regularly seek information from Ministers about recurring issues - many of which are discussed in today’s Alert Digest - when that information could be included in the explanatory memorandum. When considering bills that come before it, the Committee places a great deal of reliance on the accompanying explanatory material. If this material does not clearly explain the operation and impact of the particular legislative proposal, then the work of the Committee is made more difficult.

It is absolutely essential that explanatory memoranda include clear and comprehensive explanations of provisions to ‘fill in the gaps’ so that legislation is accessible and readily understood by the Committee, the Senate, and members of the public. In this context, the Committee considers that ‘too much information’ is preferable to ‘not enough information’. Where detailed explanations are provided in explanatory memoranda, the Committee is more readily able to satisfy itself that provisions do not infringe its terms of reference - without recourse to Ministers.

The Committee would once again urge Ministers to ensure that explanatory memoranda are put through quality assurance processes. As stated in the Legislation Handbook developed by the Department of the Prime Minister and Cabinet, the aim of explanatory memoranda is to assist ‘members of Parliament, officials and the public to understand the objectives and detailed operation of the clauses of the bill’.

As the Legislation Handbook recognises, explanatory memoranda ‘should not simply repeat the words of the bill or restate them in simpler language’. Full explanations of the purpose of clauses is crucial and examples of their intended effect, or the problems they are intended to overcome, are always helpful in illustrating how particular measures will operate in practice.

I commend the Committee’s Alert Digest No. 5 of 2009 and Fourth Report of 2009 to the Senate.